With the death of Chief Justice Rehnquist, much will be said about the man himself, his background as a lawyer and work for the Department of Justice, his initial accession to the Supreme Court and then appointment as Chief Justice, his administrative abilities as head of the federal judicial system, and, in the end, his personal courage in the face of certain death from thyroid cancer.

Pundits will rightly observe that the Chief’s passing is of considerable importance to the future of the Supreme Court, and thus to the future of our Nation—especially because of the unprecedented War on Terror in which we are, and will continue to be, engaged.In the days ahead—especially when his replacement is nominated, and the political war (politely called “the confirmation process”) begins—much will be said about Rehnquist’s jurisprudence and his legacy.

The Left, while observing the niceties required when speaking of the dead, will nonetheless condemn Rehnquist for his conservatism.Already, with his body not yet cold, Professor Alan Dershowitz has characterized Chief Justice Rehnquist as an “activist,” noting that “The Rehnquist Court” held a considerable number of federal statutes unconstitutional.

Putting aside what can later be said about how the Constitution and Chief Justice John Marshall’s opinion in Marbury v. Madison makes it the job of the Supreme Court to hold unconstitutional Congressional laws that are unconstitutional; putting aside what can later be said about how the federal statutes ruled unconstitutional during Rehnquist’s tenure violated core principles of federalism and separation of powers; and putting aside what can later be said about how not every one of those rulings were the work of Supreme Court “conservatives” let alone by Rehnquist alone; what needs to be said today about the late Chief Justice is what fundamentally informed his jurisprudence—because it is his legal philosophy that will be his judicial epitaph.

No better example of that jurisprudence can be found than in the most divisive case of the Twentieth Century, Roe v. Wade, which invalidated the anti-abortion laws of fifty states.(Professor Dershowitz: Was that the kind of “activism” of which you approve, or disapprove?)

Roe was first argued on December 13, 1971.Two days later, William H. Rehnquist was appointed an associate justice of the Supreme Court of the United States by President Richard M. Nixon, and he took his seat on January 7, 1972.

Roe was reargued on October 11, 1972, and decided on January 22, 1973—one year after Rehnquist became a member of the Supreme Court of the United States.

At that time, his colleagues on the Court were Chief Justice Warren Burger and Associate Justices William O. Douglas, William J. Brennan, Jr., Potter Stewart, Byron R. White, Thurgood Marshall, Harry A. Blackmun, and Lewis F. Powell, Jr.Burger had been a high official in the Department of Justice.Douglas and Brennan were icons of liberal America, and exponents of the “living Constitution” school of jurisprudence.Stewart had been a federal Court of Appeals judge. White had been Deputy Attorney General under Robert Kennedy.Marshall was the legendary NAACP lawyer responsible for winning the school desegregation cases. Blackmun had been a federal Court of Appeals judge.Powell had been president of the American Bar Association.

Rehnquist, despite his many professional achievements (including a responsible job in the Justice Department) had never been a judge on any court.

The decision in Roe was 7-2, the majority consisting of Blackmun, who wrote the opinion, and Burger, Douglas, Brennan, Stewart, Marshall and Powell—three of whom (Burger, Douglas and Stewart) wrote concurring opinions.

There were two dissents, White and Rehnquist, each of whom wrote separately, and also joined the other’s opinion.To understand fully Rehnquist’s dissent, it is necessary to understand White’s.

Putting aside the strong moral implications of the White dissenting opinion, he wrote that “[t]he Court for the most part sustains this position: During the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the pregnant woman more than the life or the potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.”White then blasted the majority for (1) lack of textual or historical support for “this new constitutional right,” (2) disentitling the people and legislatures of fifty states from making the important policy decision about abortion, and thus violating core principles of federalism, (3) exercising “raw judicial power,” and (4) exceeding by far the appropriate bounds of judicial review entrusted to the Court by the Constitution, and thus violating separation of powers.

By joining White’s dissent, Rehnquist signed on to principles of “original intent,” federalism, separation of powers, and judicial restraint.His own dissent, while alluding to those principles, made two telling additional points.

First, he found in the Texas anti-abortion law no violation of due process because the traditional test—rational relation to a valid state objective—was easily satisfied.As to the majority in Roe having cranked up the test—the law could be sustained only if the State could show a “compelling state interest,” a very high hurdle—Rehnquist argued that his seven colleagues had ignored “the history of the Fourteenth Amendment.”

Much more important, however, than Rehnquist’s eminently correct due process analysis was that he went straight for the jugular of Roe’score premise: that the Constitution “somewhere” contained a “right of privacy.”In so doing, he revealed himself early as an explicit opponent of the “living Constitution” theory, and all of the devastation that rogue constitutional notion has wrought.Although, in Roe, Rehnquist did not mention by name the case that originated the ersatz concept of a “right to privacy,” it was clear he was adverting to Griswold v. Connecticut.

A Connecticut statute had provided that “Any person who uses any drug, medicinal article or instrument for the purpose of preventing contraception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one yearor be both fined and imprisoned.”

Because the federal Constitution does not prohibit the states from enacting stupid laws, the Warren Court had to find some other way to hold the Connecticut law unconstitutional.According to Justice Douglas, prior cases of the Supreme Court “suggested that specific guarantees in the Bill of Rights”—dealing with, speech, press, association, quartering soldiers, search and seizure, self-incrimination, and the education of one’s children—“have penumbras, formed by emanations from those guarantees that help give them life and substance.”As a result of these “penumbras” and “emanations”— but not a shred of constitutional precedent or other authority—the Warren Court gave birth to a Constitutionally-guaranteed “right of privacy.”For the seven-justice majority, Douglas wrote:

We deal with a right of privacy older than the Bill of Rights—older

than our political parties, older than our school system.Marriage [about which the Connecticut law said nothing] is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred [said the oft-married Douglas].It is an association that promotes a way of life, not not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.Yet it is an association for as noble a purpose as any involved in our prior decisions.

Thus, it was Griswold that provided a “living Constitution” rationale for the later decision in Roe.Accordingly, when Rehnquist dissented in Roe he was attacking Griswold, and by attacking Griswold he was repudiating the indefensible and pernicious notion of a “living Constitution.”This is a crucially important aspect of his jurisprudence.

Were there room on his headstone, there are those who would like to see this epitaph: “William H. Rehnquist: He read the Constitution, understood its meaning, and so ruled.”

Henry Mark Holzer, Professor Emeritus at BrooklynLawSchool, is a constitutional lawyer and author
most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A
Conservative’s
Perspective.

We have implemented a new commenting system. To use it you must login/register with disqus. Registering is simple and can be done while posting this comment itself. Please contact gzenone [at] horowitzfreedomcenter.org if you have any difficulties.